A federal appeals court has ruled that the U.S. Department of Agriculture (USDA) is not clearly required by federal law to issue a regulation barring hydroponic growers from labeling their goods as organic. Ctr. for Food Safety v. Vilsack, No. 21-15883 (9th Cir., entered September 22, 2022).

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously held in an unsigned, unpublished opinion that the Organic Foods Production Act (OFPA) of 1990 does not clearly bar hydroponic production.

The ruling comes in an appeal brought by consumer and organic farming industry groups in their suit against USDA filed in 2020 after the agency rejected their 2019 petition to issue regulations prohibiting organic certification of hydroponic agricultural production. They argued that hydroponic operations fail to satisfy the tenets of organic farming and do not meet the statutory and regulatory requirements of OFPA.

The district court disagreed, granting the agency’s motion for summary judgment. The plaintiffs then appealed to the Ninth Circuit, which affirmed the lower court ruling.

“If the OFPA’s text clearly barred hydroponic production, we would be required to enforce it according to its terms and set aside USDA’s interpretation,” the panel said in the opinion. “But no part of the statute clearly precludes organic certification of crops grown hydroponically.”

Additionally, the panel disagreed with the plaintiffs’ assertion that hydroponic producers cannot comply with OFPA’s requirement that crop production farm plans “contain provisions designed to foster soil fertility.”

“USDA’s decision instead interpreted that provision to mean that if crops are grown in soil, their producers must take measures to preserve that soil’s ‘fertility’ and ‘organic content,’” the panel said. “That interpretation is consistent with the OFPA, which provides that ‘[if] a production or handling practice is not prohibited or otherwise restricted under this chapter, such practice shall be permitted unless it is determined that such practice would be inconsistent with the applicable organic certification program.’”

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